The World Health Organization defines rape as ‘physically forced or otherwise coerced penetration … of the vulva or anus, using a penis, other body parts or an object’.[1] Rape is a subset of sexual assault, which is defined as any sexual act (including but not limited to penetration or intercourse) committed using coercion or without the victim’s consent.[2] People of any gender can be victims of rape and sexual assault, but the majority of victims are women. The Sage Publications Multimedia Encyclopedia of Women in Today’s World notes that most legal definitions of rape involve sexual penetration through force and without consent. The Sage entry, however, also acknowledges that there remains ‘widespread disagreement regarding the meanings of “penetration,” “force,” and “consent”’; definitions and application of the laws on rape vary from country to country, and even from jurisdiction to jurisdiction within a country.[3] Rape victims may thus be left to seek justice amid confusing laws, or be faced with sceptical law enforcement personnel who doubt their claims and experiences.

Another issue related to rape and sexual assault is that of ‘victim blaming’: holding victims of sexual assault responsible for the rape or assault because of their attire, appearance or actions. In India, there have been several documented cases of victim-blaming by politicians, spiritual leaders, lawyers, police officers, and even women’s commission members.[4] A pervasive victim-blaming culture can deter women from reporting rapes, can cause them to fear further victimisation at the hands of law enforcement, and can make it difficult to successfully prosecute those rapes that are reported.

Feminists and advocates combating violence against women have argued that acts previously not recognized as rape should in fact be included in legal definitions. For instance, many countries have included an exception for marital rape, either previously or in current laws, stating that intercourse between a husband and wife cannot be deemed rape regardless of whether one party did not consent.[5] Advocates have also argued against the notion that ‘in order for an encounter to count as rape, the victim must have displayed “utmost” (or even any) physical resistance.[6] Nevertheless, ambiguity remains both in many legal definitions of rape and in enforcement of those laws.

The problem of rape is often compounded by widespread misunderstandings about the nature and incidence of rape and sexual assault. Many believe, for instance, that perpetrators are usually strangers to their victims, that women must have been ‘asking for it’ by behaving promiscuously or going out alone at night, or that lack of overt physical resistance implies consent.[7] In fact, many if not the majority of perpetrators are known to their victims; rapes can occur at any time of day in virtually any context, not just when a woman is along at night; and victims may be unable to resist or choose not to struggle out of fear of even greater violence.

The issue of rape in India has garnered much greater national and international attention in recent years, in large part due to the 2012 Delhi gang rape case that spurred mass protests and an international outcry.

On the evening of December 16, 2012, a 23-year-old physiotherapist and her male friend caught a bus home after seeing a movie in a Delhi suburb. The six men on the bus, including the bus driver, began to taunt the pair for being out late together. The man, to protect his friend, tried to stop the teasing, upon which the situation turned violent. The man was beaten with an iron rod and gagged, while the woman was dragged to the rear of the bus, brutally raped and beaten repeatedly by the six men over the course of several hours. Finally, the men threw the two victims out of the moving bus, leaving them on the side of the road.[8]

The pair was taken to a hospital, where the man began to recover from his injuries. The woman, however, remained in critical condition for several days before dying from her injuries in a Singapore hospital on December 29, 2012.[9]

This incident became a watershed in spurring discussion and action on violence against women in India. It provoked national and international outcry over the status of women in India, prompting the Indian government to re-evaluate its procedures for the treatment, prosecution and compensation of gender violence. The Delhi gang rape case catalysed numerous mass demonstrations and increased activism around gender violence in general and the legal system’s handling of it in particular.[10]

In response to public pressure for a speedy trial, the Delhi High Court in December 2012 approved the creation of five fast-tracked courts to prosecute rape and sexual assault cases. It was in one of these courts that five of the men accused of the gang rape were prosecuted on charges of kidnap, rape, murder, attempted murder and destruction of evidence. The sixth man, a minor at the time of the attack, has been prosecuted in the juvenile court system.[11]

In March 2013, one of the accused committed suicide in prison while still on trial. The juvenile offender was sentenced to three years in a reform centre. The remaining four were convicted; the court issued death sentences in all four cases.[12]

In March 2014, the Delhi High Court upheld the verdict of the death sentence for all four convicts. As of mid-July 2014, the execution was stayed pending an appeal by the lawyers of the accused, who alleged that the trial had not been conducted in a ‘free and fair’ manner.[13]

In a wider response to the issue, the national government and state governments of India set up various commissions to better investigate violence against women. On December 22, 2012, the national government commissioned a judicial committee headed by former Chief Justice of India J. S. Verma, to investigate the legal framework and precedents regarding the prosecution of sexual assault as well as to make recommendations for amendments to criminal law. The Justice Verma Committee appealed to lawyers, the non-profit sector, women’s groups, the civil sector and the general public for their input and suggestions.[14] The report, released in February 2013, points to failures of government institutions and the police in recognizing and prosecuting sexual assault in a timely and constitutional manner.[15]

In April 2013, based on the recommendations given by the Justice J. S. Verma Committee, President Pranab Mukherjee gave his assent to the Criminal Law (Amendment) Act, 2013, which made changes to the Indian Penal Code and Indian Evidence Act on laws related to sexual offences.[16]

The Criminal Law (Amendment) Act, 2013, introduced various amendments to existing laws on rape and sexual assault in the Indian Penal Code (IPC). The Delhi gang rape case and the resultant public outcry were a powerful impetus in amending the laws. As Indian law stands today, the Act describes rape explicitly and exclusively as committed by male perpetrators against female victims. While this does encompass the majority of rape cases, it does not account for rape that occurs between other victim-perpetrator combinations, such as the rape of a man by another man.

Following the amendments introduced by the Criminal Law (Amendment) Act, 2013, Section 375 of the IPC defines rape as non-consensual intercourse, penetration using the penis or ‘any object or a part of the body’, or oral intercourse.[17] The Act also specifies circumstances where consent may be nominally given but not valid, such as: consent obtained through coercion or threats; consent obtained by falsely impersonating the victim’s husband; and consent from a victim ‘unable to understand the nature and consequences’ of what she is agreeing to due to ‘unsoundness of mind or intoxication’. When a victim is below 18 years of age, penetration or intercourse is considered rape regardless of whether consent was given.[18]

The law specifies that mere lack of physical resistance is not sufficient to be regarded as consent. However, it also states that consent may be given ‘by words, gestures or any form of verbal or non-verbal communication’, creating potential ambiguities in determining when a woman has consented to a given sexual activity and possibly making it more difficult to prosecute rape complaints.[19]

Section 376 states that rape is punishable by imprisonment of at least seven years and up to a life sentence, plus a fine.[20] In certain cases, perpetrators are required to receive harsher sentences, such as when the perpetrator is a police officer, public servant or member of the military; when he holds ‘a position of trust or authority towards the woman’; or when the victim is pregnant, disabled or a minor. In these situations, the minimum sentence is ten years, with the possibility of a life sentence, plus a fine.[21] Section 376A prescribes a minimum sentence of twenty years when a perpetrator commits rape or sexual violence that ‘causes the death of the woman or causes the woman to be in a persistent vegetative state’,[22] while under Section 376D, a perpetrator in a gang rape faces a minimum sentence of twenty years, up to life imprisonment, plus a fine.[23]

The Criminal Law (Amendment) Act, 2013, has faced criticism for ignoring the Verma Committee’s recommendations on a number of issues; for example, the Act has raised the age of consent from 16 to 18, and has failed to make changes to the Armed Forces (Special Powers) Act, which currently makes it more difficult to try members of the armed forces for gender-based crimes[24]. The Act also includes an exception for marital rape, stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’.[25] This means that, under Indian law, marital status takes precedence over lack of consent in determining rape and sexual assault cases. The Criminal Law (Amendment) Act, 2013, does criminalise rape committed by a husband against his wife when they are ‘living separately, whether under a decree of separation or otherwise’, and prescribes a sentence of between two and seven years’ imprisonment, plus a fine.[26] For the majority of women assaulted by their husbands, however, there is no legal avenue for a criminal prosecution. The only legal remedy available to wives is the Domestic Violence Act, 2005, which is a civil rather than criminal law that provides for domestic violence reporting mechanisms and monetary compensation for victims.[27] It does not provide for punishment of offenders. Women’s advocates have argued that the marital rape exception prevents India’s criminal laws from adequately protecting women and effectively legalises countless cases of rape and abuse that occur within marriages.

Keeping Count

The National Crime Records Bureau (NCRB) keeps track of cases of rape reported under Section 376 of the Indian Penal Code. The NCRB reported 33,707 cases of rape in 2013, an increase of 35.2% from 2012 (24,923 cases).[28] Although many rapes and sexual assaults are not reported, reports of rapes have increased in recent years as more victims have stepped forward. It is possible that growing public attention towards the issue has emboldened more women to seek justice; it has also been suggested that the actual incidence of rape is increasing, contributing to the growing number of reports.[29] One estimate suggests that in India, a woman is raped on average every 20 mintues.[30]

Table 1 and Figure 1 show the number of rape cases reported between 2009 and 2013 according to the NCRB data.

Note that the NCRB data only includes cases that fall under the Indian Penal Code definition of rape, not other forms of sexual assault that do not meet that definition.

The actual incidence of rape and sexual assault is difficult to determine with accuracy, as experts agree that the majority of rapes worldwide likely go unreported. Estimates of the proportion of unreported rapes vary from 54%[33] to 90%[34] of all rapes.

Of the rapes that are reported, the majority do not result in a successful prosecution. As of 2013, as many as three fourths of the perpetrators of the 24,206 rape cases brought forth in 2011 were either yet to face trial, had been acquitted or had the charges dropped.[35] Many rape and assault victims may decide not to report the assaults because of the fear of indifference or even retaliation from police officers and other law enforcement personnel. Victims have reported being asked demeaning questions by police, feeling as if the questioning procedures were like a second assault, waiting for hours to receive medical attention and being pressurized to marry their attackers or withdraw their complaints.[36]

The YouTube video’s doing the rounds but here’s the full text (translated) version of what Kavitha Krishnan, Secretary of the All India Progressive Women’s Association (AIPWA), said while protesting outside the Delhi Chief Minister’s residence:

“Today we protested outside Sheila Dixit’s house…and demanded that she should resign [over the inability of the govt to provide safety for women in Delhi streets]. It is important to understand why we are asking for this in more depth, and also to explain to them [the administration]. Sheila Dixit has said that since the rape happened in a private bus, not on a DTC [public service/Delhi Transport Corporation] bus, how is she responsible? So we have come to educate her, that if there are buses in which iron rods just lie about, where monsters travel around the city in these buses, where there are no rules or regulations for the operation of these buses, where they can do anything, for this you alone are responsible, no one else. Today, if that girl is fighting for her life, you are responsible. Why was that iron rod lying in that bus, this answer only you can give us, no one else. You cannot blame anyone else for this.

But there is a further, more important issue here, that we came here to protest today but have also been doing [for the past few days]. When journalist Soumya [Viswanathan] was killed, Sheila Dixit had said that she was out and about at 3 in the morning, she was too ‘adventurous’. So we have come here to say that women have every right to be adventurous. We will be adventurous. We will be reckless. We will be rash. We will not do anything to secure our ‘safety.’ Don’t tell us what to wear. What time at night we should be out, how we should be out during the day, how many people we should have with us – don’t tell us any of that. When Neeraj Kumar had just become Police Commissioner, he held a press conference in which he said, what can the police do in cases of rape? First he said that most often it is people who are well known to the woman who rape her. He is right, this is a fact. But then, shouldn’t this make it easier for them to be caught? After all, if she knows who has raped her, then it should make it all the easier to catch him. We are not asking the police, why didn’t you stop it. But we are asking them this: the conviction rate, which has gone from 46% in 1971 to 26% now, who is responsible for that? This tells us that there is a frightening gap, a lack in the police’s investigations…there is no procedure on how you must proceed in cases of rape. There is only one procedure that I think all women and girls standing here are familiar with. If you go to a police station and say that you have been the target of sexual violence, the first thing they will tell you is not to file an FIR [First Information Report]. People will come from all over, even from outside the police station to explain to you, “don’t file a complaint.” Until you go up the chain of command and say that you are from a students’ group, or a women’s group, nothing happens. This is so ordinary, there can hardly be a woman in all of Delhi who doesn’t know that this is the normal procedure that the police follow, not written in any rule book, it’s regular practice.

There is yet another thing that Neeraj Kumar had said in that press conference – that women shouldn’t travel alone at night, they should have someone with them. If you are out at 2 in the morning, how can you expect that we [the police] will come to save you? Now in this rape that has occurred, it is clear – it was neither 2 at night, and there was someone with her. Now if a woman wants to be out and about at night, there should not be the need to justify that she has to be out because she is working, she is returning from work. If she wants to be out, if she wants to go get a cigarette, if she wants to take a stroll, this desire should not be made into her crime. We don’t want to hear this defensive argument – that women only leave their houses for jobs, poor things, what can they do, they are compelled to leave their homes. We believe that women’s freedom – whether it is within the home or outside it, at night or in the daytime, whatever she is wearing – is an important matter and this freedom to be, a freedom from fear, must be protected. That is what we are asking for. I am saying this also because I feel that the word(s) security and protection in relation to women are thrown about a lot – because this word security, and all of us women have heard it from our families, our communities, from the principal, the warden, we all know what it means. Security means – you behave yourself. You get back into the house. You don’t dress in a particular way. Don’t live on your terms of independence, that is what they mean by being safe. All the patriarchal norms and rules of society are gathered up and given to women as ‘protection’ and we reject this entirely, we are saying this is not what we want.

The Delhi Police has been running a campaign against violence against women. You might have seen the hoardings up near ITO…in an ad campaign regarding violence against women, there is not a single woman! There is a male film actor, Farhaan Akhtar, who is saying, Be a Man, join me in protecting women. So I want to ask, the brother who cuts his sister’s head off because she marries into another community, is he not fulfilling his duty of being a man, of being a brother? Is evoking masculinity part of the solution of violence against women, or is it the very root of it? It is very important to think about this. In the entire country, this is what we see outside the women’s movement, whether it is in government, police organisations, political parties, the judiciary…whenever they talk about the protection of women, they are talking specifically of a patriarchal protection of women. They are not talking about a freedom without fear, an unqualified freedom for women. Our work is this – the work of these agitations on the street which have been going on and I hope they continue – that the answer to such events does not lie in CCTV cameras, in the death penalty, in chemical castration. Our anger is legitimate, but I am fearful of “solutions” like this. If the problem is the conviction rate, how will the death penalty help? The conviction rate is low because in your entire procedure relating to rape, you don’t take the complainant seriously. It is another matter that the rape legislation is bad, it’s weak – rape by objects used to penetrate the woman’s body does not even feature in the definition of rape. A significant part of what happened on that bus in Munirka, which was so deadly, so dangerous for the girl, does not even qualify as rape under the law.

Here there is one more thing I would like to stress – Sushma Swaraj gave a speech in parliament in which she said something that I found utterly disgusting. Highly condemnable. She said, even if this girl lives, she will be a living corpse. Why? If this girl lives, I believe she will live with her head held high. She has fought. She fought, and that’s why, to teach her a lesson, the rapists beat and raped her. There can hardly be a woman here who hasn’t fought in Delhi’s buses, who hasn’t stood alone in her fight against this violence. Who hasn’t felt utterly alone in these situations. I read in the papers, I don’t know if it’s true, but I read that when she gained consciousness, she asked whether the rapists had been caught. Her desire to fight is still strong, it is not over. We salute that desire to fight, those who survive rape are not living corpses. They are fully alive, fighting, striving women and we salute all such women.

The last thing I would like to say is this: There are plenty of people who say in times like this – let’s not politicise the matter. But there is a need to talk about it, and politics is not cheapened by it. The culture of rape, the justification by people from up high – like KPS Gill who said that rape occurs because women wear tight clothes – the vast number of people who say these kinds of things…if we want to change this then we must make rape a political issue. We have to talk more about what women are saying about the violence that is done to them. And the government will have to listen. Shedding some crocodile tears in parliament isn’t going to be enough. By shouting about the death penalty you won’t be able to solve this problem. I find it ironic that the BJP is the loudest when it comes to asking for the death penalty, but states where they are in power, their own goons run about harassing girls wearing jeans, girls who have Muslim or Christian boyfriends, and warn them that girls have to be the carriers of Hindu culture and values, or else. We have to respond to these thugs with a counter-culture, a counter-politics of our own. One that demands women’s rights to full freedom, fearless living. We have been attacked by water cannons here by the police, and I have to say I have been really surprised by that. There are demonstrations all over the city, and surely the government should have some sense that this anger that people have is not going to be beaten back by water cannons and lathis. It is shameful that the government and police are ever-ready to attack those who fight for women’s rights, while presenting arguments oh behalf of the rapists.”